Cold Survival Tactics for Frozen Truckers in the Wake of 2018’s Winter Storms

Cold Survival Tactics for Frozen Truckers in the Wake of 2018’s Winter Storms

By Matthew Harvey

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Early 2018 brought what meteorologists described as a “Bomb Cyclone” to the East Coast, which led to record-breaking freezing temperatures across the country. The Niagara Falls even froze over, and dozens of deaths were reported.

To add insult to injury, Winter storms continue to ravage the south while the west readies itself for Winter Storm Jaxon.

Cue panic buying of Milk and Bread…

Grocery stores across the Nation were terrified by the thought of the shipment that would never come, and many feared having to wait until being thawed out before they would receive their necessities.

American trucking, however, never stops. That leaves truckers, who keep this country moving, facing some of the most unforgiving frost to ever grip the country.

To those brave men and women who will be on the icy roads this month, we bring you a list of survival tactics so you can brave the winter storm:

Any product suggestions in this post are unsolicited. We were not paid to advertise these products.

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1. Layers

Wearing layers is the number-one advice for dressing warm in the winter. But which layers go where?

Start with a piece of clothing made out of synthetic material that can wick sweat from your body. Natural fibers like cotton can hold moisture and keep you wet, leaving you cold. Try polyester blends like Polypropylene which pull moisture from the body to the exterior of the shirt, where it will evaporate.

A middle layer should be used if it’s especially cold out for insulation. A polar fleece or level-4 thermals should keep you warm, even in this record-breaking chill.

Lastly make sure to include an outer layer of nylon or Gore-Tex, which will not only keep you dry but also protect you against wind chill.

It’s also advisable to keep an extra change of clothes, in case one gets wet during loading or unloading of hauls. Keeping dry is the most important factor in staying warm, after all.

2. Hands and Feet

You know how important keeping your hands and feet warm during the winter is! After all, humans lose upwards of 30% of the heat from their bodies from hands and feet.

But it’s 2018, which means your winter sock and glove game could probably use some updating.

For your feet, the traditional advice was to use a sock liner for moisture followed by a wool sock for warmth. But socks have evolved, and many exist with moisture wicking properties that will still keep you plenty warm.

Aim for a sock made of Merino Wool, which has both anti-moisture and anti-microbial properties. Generally, merino wool base layer products can be worn for days, if not weeks at a time without needing a wash. Plus they’re not itchy like regular wool and will still keep you warm. Here’s a solid pair from Amazon at less than $20.

As for your hands, it’s time to get some gloves that work with your smartphone — and I’m not talking about gloves without fingertips!

There are tons of gloves out there which have been specially designed with conductive fabric so you can continue typing, even with them on. That way, you don’t have to remove your gloves to send that text, or look at your phone’s map. This is a good choice for touchscreen gloves from Amazon that will set you back less than $10.

3. Head Wear

The human skull has relatively thin skin and a lot of blood flowing through it. That means it allows heat from blood to escape more quickly than other areas of the body.

While old claims humans release the “majority” of body heat through the head are misleading, it’s still important to keep your head warm this season.

A winter cap or beanie made of fleece will do the job in most situations. Pair that with a scarf and one would be prepared for winter most anywhere. But for the particularly frigid temperatures this season, one may want to spring for something even better.

Balaclavas (like this one from Amazon, ~$15) are often worn by skiers and will keep your head, face, and neck warm. Generally a good option for the especially cold winter, but maybe not for truckers spending most their time inside the cab.

These Ushanka-Style Hats (from Amazon, ~$20) offer a little more versatility, with ear muffs and a removable face mask to keep the cold away from the most sensitive areas while outside. A polyester outer shell will keep you dry, and the chin-strap will keep the hat in place while loading or unloading hauls.

4. Keep Fuel in the Tank

Keeping your truck properly fueled at the right cost is undoubtedly important, but we’re talking about the driver’s fuel tank here. Check out our review of the smartphone app GasBuddy below for information on keeping your truck fueled.

Generally, as temperatures drop, our need for food and caloric intake increases. Cold stimulates the appetite: experience a drop in temperature or a chill, and you might find yourself searching for food. The body also generates 10% more heat 30-to-60 minutes after eating than compared to an empty stomach.

Therefore it’s especially important to keep stocked up on calorie-heavy and fat-laden foods during the winter: it’s not just for giving you energy, it’s also for staying warm.

That’s why Winter campers often keep nutritional snacks stored away for a boost of fuel. Snacks like dried fruit, candy bars, nuts, and granola can be great sources of emergency fuel.

Some other alternatives include protein/nutrition bars, peanut butter, jerky, and canned meats. These are chock-full of fat and calories, and often keep for long periods of time, making them ideal for the person on-the-move.

While our need for food increases in cold temperatures, the same is not necessarily true for water. Our need for water does not increase as the temperature drops.

Our body’s response to thirst, however, does become impaired in colder environments, which may lead one to not drink as much water as needed. With the increase in dryness from the cold, therefore, it’s especially important to regularly quench your thirst. General advice is to drink around a half-gallon of water each day, but more if exercising.

There are many risks associated with not properly “fueling up.” Both dehydration and improper nutrition can lead to poor bodily thermoregulation, deterioration in fine motor skills, decreased mental capacity, and drowsiness.

5. Stay Active

Beyond keeping your body warm, moving and staying active has one important benefit for truckers: Staying awake.

Of course it can be very difficult to stay active while in the cab in-between hauls, especially in such frigid weather. Here are some simple ways to keep your body engaged, even while sitting:

• Foot Alphabet: Sit up straight with both feet on the floor. Raise one foot high enough to swivel in all directions. Then, with your big toe, write the alphabet. As you make letters, spread and curl your other toes. Repeat with your other foot.
• Cheek Scrunches: Sit up straight, and tighten your glutes (butt muscles) for 5-10 seconds. Relax, and repeat 5-10 times. Can even be done while driving.
• Deep breathing: Inhale as big as possible so both chest and diaphragm are full. Exhale slowly, letting out all the air in your lungs. Repeat for the duration of 1 song (or about 2 minutes). Can even be done while driving.
• Exercise your eyes: Dart your eyes between your mirrors, or from side-to-side and up-and-down for about 1 minute.

6. Warm Up to Avoid Muscle Strain

When it’s very cold out, humans experience a greater risk of muscle strain due to muscles losing heat and contracting. That leaves many with tight joints and lack of range-in-motion from their muscles.

One can avoid achy joints and sore muscles in the winter, however, through some proper warm ups that bring their body up to temperature before strenuous activity.

For truckers who drive long hours, this means making sure to leave room to warm up their bodies before loading and unloading hauls.

It’s recommended to warm up for about 10-minutes before strenuous activity when temperatures reach 35-45 degrees. Anything that gets the blood pumping and sweat dripping can be an effective warm up. Make sure, as well, to stretch lightly any muscle groups that seem tight. For most, this means hamstrings, quadriceps, and shoulders.

Check out Built Lean’s great 5-minute stretch routine that covers all the important muscle groups.

7. Protect Yourself

Many of us see overcast clouds in the winter and believe we’re protected from the sun’s rays. This is not so. Upward of 80% of the sun’s UVA rays penetrate winter clouds, meaning one might experience sun damage even on the cloudiest of days.

Added with the drying effect the winter season has on skin, sun-protectants are still very much necessary, if not even more so, during the winter.

That means it’s time to stock up on sunscreen and lip balm. Aim for products with added moisturizers to keep skin hydrated, and make sure to purchase at least SPF 30 (Our favorite winter-time lip balm is Carmex Medicated Cherry Lip balm — couldn’t live without it).

More than skin, however, winter is also a time to think about protecting your eyes. Glare coming off the snow and UV-rays coming through the clouds can still be damaging to your sight, so make sure to keep UV-protecting sunglasses handy. Eye drops are also essential for keeping dry eyes at bay, at a time where furnaces and heaters can dry out the air indoors.

8. Emergency Kits

Everyone should carry an emergency survival kit in their car, and the same goes double for truckers. In a serious emergency, especially in the freezing cold, it could save your life.

Many pre-packaged kits exist that will carry all essential items, but it can be more cost-effective and better-tailored to your specific needs to build your own kit.

Essential Winter Survival Kit Items include:

• A shovel
• Windshield scraper and broom
• Battery Powered Radio
• Flashlight
• Extra Batteries
• Water
• Calorie-rich snack foods with long shelf lives
• Waterproof strike-anywhere matches and candles
• First aid kit
• A change of warm clothes
• Essential medications
• Sleeping bag and space blanket
• Tow chain or rope
• Road salt or cat litter (for traction)
• Jumper cables
• Emergency flares
• Cell-phone charger with car-lighter adapter

9. Shoveling Snow?

For those that are stuck shoveling, snow buildup on your shovel can make the job even harder. For those of us armed with a little non-stick cooking spray, however, snow buildup is no more!

Just spray a little Pam or your favorite non-stick cooking spray on your shovel and say goodbye to snow-covered shovels.

10. Truck Technology

Truck technology has made tremendous strides to improve the lives and efficiency of truck drivers around the World. Prices and availability have followed suit, and now even the smallest mom & pop moving companies can afford to make some technological improvements to their vehicles.

Here are our top recommendations for getting your Truck ready for the Winter:

• Snow Chains are required by the California Department of Transportation (as well as many other states) to be carried on trucks when driving in chain-control areas. Truckers this winter will be chaining up all across the nation, but many will benefit from having Automatic Chain Systems installed. These Automatic Icechains — like these from Insta-Chain— deploy in seconds from the flip of a switch right inside the cab. That means no more stopping to chain-up, or even leaving the driver’s seat!
• Jacob Engine Brake Systems (commonly known as the “Jake Brake”) are often installed on large diesel trucks. However use of the Jake Brake is not recommended on icy roads, as it can cause the truck to jackknife or spin sideways if the rear axle breaks traction. Check out Smart Trucking’s 20 Tips for Using the Jake Brake for more information on Jacobs Engine Brake Systems.
• Truck Lubrication and Fluids are even more important in the winter chill. After all, your truck really doesn’t like the winter. Tire pressures drop, things begin leaking, water in fluids freeze, and things rust; that’s why vehicle inspections, lubrication transfusion, and fluid topping-up is important before it’s too late. Make sure to stick with synthetic fluids for the winter, as they flow better at lower temperatures.
• Windshield Wipers are going to be your best friend while it’s snowing or raining, and you definitely don’t want to be caught in a storm with broken ones. It’s recommended to change Wiper Blades every 6 months. Wiper Blades even come in Winter/Extreme Weather varieties, which will perform at up to -20F weather.

11. Smartphone Apps

Smartphone applications for truckers have blown up, and go a long way in making everyone’s life easier on the road. Here are a few of our favorites:

• CamScanner: Dealing with physical documents and paperwork such as Bills of Lading, Trip Pay Sheets, and company paperwork can create complications for anyone, let along drivers in freezing temperatures. CamScanner creates digital files of all these documents using only your phone’s camera. Just lay it flat, snap a picture, and voila: your document is available in a multitude of digital formats. Avoid hassle, mistakes, legal issues, and delays by having access to all your documents at your fingertips, ready to be emailed or sent to anyone on a whim.
• Truckers Path: Makes trip planning easy. Find truck stops, weigh stations, parking, and even Walmarts with Truckers Path. Users can mark parking availability, open/closed weigh station, and review restaurant and truck stop quality, meaning you can stop at only the best, open, and available locations.
• Weather Route Free (only available on Android): Set start-and-end points, and Weather Route Free will give you a time-staggered list of basic weather events on your path. Even has a slider to adjust the shown times, making matching your schedule and preferred conditions easy.
• Cat Scales App: No more parking and going inside at weigh stations. Simply hook the app to a credit card, enter the code on the scale, see your weight, and pay instantly. Especially helpful in the wintertime or when in a hurry.
• Gas Buddy: Potential money-saver. Gas Buddy is a useful app not just for truckers, but anyone interested in finding the best places to get gas. Current prices are user-provided so often require updating, but still a useful app to look on a map for the best prices around.

Guide to New Employment Laws for 2018

Guide to New Employment Laws for 2018

By Robyn McKibbin, Esq.

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New Employment Laws and regulations went in to effect January 1st, 2018. Find them below, and contact Stone | Dean’s Employment Law Practice Group for help updating your employment practices.

Ban the Box: No Criminal History Inquiries before Making a Conditional Offer (Govt. Code § 12952)

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All employers with five (5) or more employees are prohibited from including on any employment application a question that seeks disclosure of the applicant’s criminal history.  The employer cannot “inquire” or “consider” an applicant’s conviction history until after a conditional offer of employment has been made.

This also means employers cannot use background checks that reveal criminal conviction history until after an offer is made.

If an employer intends to deny employment to an application because of an applicant’s conviction history, whether in whole or in part, it must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  The employer shall consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and completion of the sentence; and (3) the nature of the job held or sought.  This assessment may or may not memorialized in writing.

If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing.  The notification shall contain: (1) notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer; (2) a copy of the conviction history report, if any; and (3) an explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.  The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant has at least five (5) business days to respond to the notice provided to the applicant before the employer may make a final decision.  The applicant’s response may dispute the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer.  If the applicant states he/she is taking specific steps to obtain evidence supporting his/her dispute, then the applicant has five (5) additional business days to respond with the evidence.

If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing.  The notice must include: (1) the final denial or disqualification; (2) any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and (3) the right to file a complaint with the Department of Fair Employment and Housing.

Do Not Ask about Salary History (Labor Code § 432.3)

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An employer may not seek salary history information about an applicant for employment.  “Salary history information” including compensation and benefits.

The new law does not prohibit an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer.  If an applicant voluntarily and without prompting discloses salary history information to a prospective employer, the employer may consider or rely on that information in determining the salary for that applicant.

If an applicant asks the pay scale for a position, the employer must provide it.

Job-Protected Parental Leave Law (Govt. Code § 12945.6)

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Employers with 20 or more employees must provide eligible employees up to 12 weeks of unpaid leave for new parents to bond with a new child within one (1) year of the child’s birth, adoption, or foster care placement.  Unlike the federal Family and Medical Leave Act and the California Family Rights Act, this new law is limited to parental leave; it does not allow for leave due to the employee’s or the employees’ family member’s “serious health condition.”

A covered employer has between 20 and 49 employees with 75 miles of each other.

A covered employee has more than 12 months of service with the employer, and at least 1,250 hours of service with the employer during the previous 12-month period.

While the leave is unpaid, the employee is entitled to use any accrued vacation pay, paid sick time, or other accrued paid time off.  In addition, the employer must maintain group health coverage during the leave at the same level and under the same conditions that would have been provided had the employee continued to work.

Immigration: Cooperation with Federal Authorities (Govt. Code §§ 7285.1, 7285.2, 7285.3, and Labor Code § 90.2)

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Under current federal immigration law, when federal immigration authorities visit a worksite to perform enforcement activity, the employer may allow authorities to access nonpublic portions of the worksite voluntarily or requiring a warrant.  California’s new law removes the employer’s ability to voluntarily allow access to nonpublic portions of the worksite.

The Labor Commissioner or Attorney General have exclusive authority to enforce this new law.  Thus, there is no private right of action under the California Labor Code’s Private Attorneys General Act.  Civil penalties range from $2,000-5,000 for the first violation and $5,000-10,000 for each subsequent violation.

The new law also prevents employers from voluntarily providing immigration enforcement agents to access employee records without a subpoena or judicial warrant.  This section does not apply to I-9 forms for which a Notice of Inspection has been provided to the employer.

If an employer receives of any Notices of inspections of I-9 Employment Eligibility Verification forms or other employment records from an immigration agency, it must provide employees notice of the inspection within 72 hours of receiving notice.  The notice must be hand-delivered at the worksite if possible, or by mail or email if hand delivery is not possible.

Retaliation: Labor Commissioner Now Authorized to Obtain a Preliminary Injunction (Labor Code § 98.7)

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An employee or the Labor Commissioner may obtain a preliminary injunction order compelling the employer to reinstate an employee pending the resolution of the employee’s retaliation lawsuit.  Meaning, an employer may be required to re-hire an employee during the time it takes to litigate the employee’s claim that he/she was subject to unlawful retaliation, which usually takes no less a year or more.

Moreover, the new law drastically reduces the burden of proof for injunctive relief in retaliation cases.  The general standard for a temporary restraining order or permanent injunction requires the party to prove (1) irreparable harm if the injunction is not granted, (2) likelihood of the success on the merits of the claim, and (3) these interests outweigh whatever harm the defendant will suffer if an injunction is granted.  Now, injunctive relief shall be granted if the individual makes a mere showing that “reasonable cause” exists to believe the employee was unlawfully terminated or subjected to an adverse action.

In addition to handing employees a much lower burden of proof than other forms of injunctive relief, the court must consider “the chilling effect on other employees asserting their rights under those laws in determining if temporary injunctive relief is just and proper.”  Thus, the court must consider an entirely new factor that only favors the employees.

Postings and Notices

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• Benefits

The Employment Development Department made changes to DE 2320 For Your Benefit and the Paid Family Leave pamphlets.  DE 2320 must be distributed to an employee upon termination or lay off, or on a leave of absence.

Paid Family Leave no longer has a seven-day waiting period.

The current versions can be found at http://www.edd.ca.gov/pdf_pub_ctr/de2320.pdf and http://www.edd.ca.gov/pdf_pub_ctr/de2511.pdf.

• Victim’s Rights Pamphlet

All employers must provide new employees with written notice about the rights of victims of domestic violence, sexual assault and stalking to take protected time off for medical treatment or legal proceedings.  The pamphlet can be found at http://www.dir.ca.gov/dlse/Victims_of_Domestic_Violence_Leave_Notice.pdf.

• Transgender Rights Poster

The Department of Fair Employment and Housing developed a new transgender rights poster.  All employers with five (5) or more employees must post this information.  If you order the federal and state law employment poster updated annually and published by the California Chamber of Commerce, the information is contained therein.  Otherwise, the poster can be found at: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/11/DFEH_E04P-ENG-2017Nov.pdf.

Also, employers should familiarize themselves with California’s new identification documentation.  California identification cards, birth certificates and driver’s licenses can include one (1) of three (3) gender options: female, male or nonbinary.  They will be phased in beginning September 1, 2018, for birth certificates, and January 1, 2019, for driver’s licenses.

Minimum Wage Increase

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For employers with 26 or more employees, the state minimum wage increased to $11/hour.  For employers with 25 or fewer employees, the state minimum wage increased to $10.50/hour.

The minimum salary threshold for executive, administrative and professional exemptions increased for 2018.  The threshold is based on the state minimum wage, not any local minimum wage.  The minimum monthly salary exemption for employers with 26 or more employees is $3,813.33/month ($45,760/year).

For employers with 25 or fewer employees, the minimum monthly salary exemption is $3,640/month ($43,680/year).

New I-9 Form (07/17/17 N)

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The latest form can be found at https://www.uscis.gov/system/files_force/files/form/i-9-paper-version.pdf

IRS Standard Mileage Rate Increases

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The 2018 IRS Mileage Rate increased to 54.5 cents/mile for business travel.

Reminders of Local Ordinances

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• Minimum Wage

The minimum wage for employees working in Los Angeles City increased on July 1, 2016, to $10.50/hour for companies with 26 or more employees.  For employers with 25 or fewer employees, minimum wage increased to $10.50 on July 1, 2017.  The increases will continue as follows:

Employers with 26 or more employers		Employers with 25 or fewer employees
7/1/16	$10.50	7/1/17	$10.50
7/1/17	$12.00	7/1/18	$12.00
7/1/18	$13.25	7/1/19	$13.25
7/1/19	$14.25	7/1/20	$14.25
7/1/20	$15.00	7/1/21	$15.00

• Paid Sick Leave

L.A. City enacted an ordinance requiring 48 hours of paid sick leave per year, doubling California’s sick pay law.  Unlike the state law which contains exceptions for certain occupations such as construction workers, certain home health workers, flight crews and workers covered by union agreements, the L.A. ordinance contains no exceptions.  Employers with 26 or more employees were required to comply by July 1, 2016.  Employers with 25 or less employees were required to comply by July 1, 2017.

Paid sick leave accrues on the first day of employment and may be used beginning on the 90th day.  Employers may either grant a lump sum (“front-load”) of paid sick leave or have it accrue at the rate of one (1) hour of sick leave for every 30 hours worked.  However, the state law has additional accrual options not allowed by the L.A. ordinance.  Further, under the front-load approach, state law provides that there is no carry over of unused sick time.  The L.A. ordinance holds that up to 72 hours must carry over year to year but it does not state whether this carry over requirement applies to front-load plans.

Like state law, unused sick leave need not be paid out upon separation.  If an employee separates and is rehired within one (1) year, any unused sick time must be reinstated.  Unlike, state law, the L.A. ordinance does not have an exception to reinstatement if paid sick leave was paid out upon separation, i.e., under a PTO policy.

The Most Important California Court Decisions for the week of August 21-25, 2017 (Civil Procedure, Insurance, Labor & Employment) By Kori Macksoud

The Most Important California Court Decisions for the week of August 21-25, 2017

(Civil Procedure, Insurance, Labor & Employment)

By Kori Macksoud

Kori Macksoud's quarterly Case Law White Paper is coming weekly to the Cutting Edge Blog! Now you’ll be able to read up on last week’s most important court decisions related to SD’s practice groups.

Stone | Dean’s quarterly court-decisions White Paper is jam-packed with all the most important court decisions in business, insurance, employment, and more! Find our library of white papers available for download by clicking here.

Civil Procedure

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Cal Sierra Development, Inc. v. George Reed, Inc.

August 22, 2017(2017) 2017 Cal. App. LEXIS 719

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/Cal-Sierra-Development-Inc.-v.-George-Reed-Inc..pdf

Cal Sierra Development, Inc. (“Cal Sierra”), and Western Aggregates, Inc. entered into a Mutual Operations Agreement (“MOA”) for the Yuba Goldfields. Pursuant to the MOA and accompanying deeds, Cal Sierra had the superior right to mine for precious metals, subject to certain exceptions; Western Aggregates had the subordinate right to the surface estate.

Yuba Gold Fields, Yuba County, CA. Photo by Gary Rose.

Thereafter, Western Aggregates entered into a license agreement with George Reed, Inc. (“Reed”), permitting Reed to locate a mobile asphalt plant on the portion of the Yuba Goldfields known as the Deep Reserve. A dispute arose when Cal Sierra’s gold mining dredge was on course to collide with the asphalt plant. Cal Sierra altered the dredge course and demanded arbitration to settle the dispute. The arbitration panel found for Cal Sierra on its claim of breach of contract, but found Cal Sierra failed to prove its tort claims of trespass, nuisance, and conversion.

After the arbitration was complete, Cal Sierra proceeded with its lawsuit against Western Aggregates’ licensee Reed and its parent company, Basic Resources, Inc. for trespass, intentional inference with contract, and negligent interference with economic relations. After a trial on the affirmative defenses of res judicata (claim preclusion) and collateral estoppel (issue preclusion), the court found res judicata applied and entered judgment for defendants. Cal Sierra appealed, contending that defendants failed to establish the elements of res judicata and that the application of res judicata in this case is inequitable.

The Court of Appeal affirmed, holding that derivative liability supported the trial court's conclusion that the Western Aggregates and Reed/Basic Resources, Inc. were in privity. The claims of trespass and nuisance that were resolved in the arbitration involved the same primary right to be free from interference with mining operations. Although no final judgment had been entered on the arbitration award (Code of Civil Procedure § 1287.4), the award had been satisfied and was a final judgment for  purposes of claim preclusion.

Miller v. City of Portland 

August 22, 2017
(2017) 2017 U.S. App. LEXIS 15953

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/Miller-v.-City-of-Portland.pdf

Roberta F. Miller sued the City of Portland and three Portland police officers under 42 United States Code § 1983 for asserted Fourth Amendment violations. Portland made a Federal Rule of Civil Procedure 68 Offer of Judgment for $1,000, plus reasonable attorney’s fees to be determined by the District Court, which Miller accepted. When Miller moved for fees, however, the District Court denied the motion on the ground that the $1,000 award was a de minimis judgment under 42 United States Code § 1988.

The Court of Appeal reversed the District Court's order and remanded for the calculation and award of a reasonable fee award. The Court held that the District Court employed the wrong analysis when it applied principles governing § 1988 awards, rather than principles governing contract construction, to decide Miller’ fee motion.

The Court held that a prevailing plaintiff under an accepted Rule 68 Offer, which provides for the award of reasonable attorney’s fees, is entitled, under the Rule 68 Offer, to an award of fees in some amount. Thus, the magistrate judge and the District Court decided the wrong question, whether plaintiff was entitled to fees under § 1988, rather than the amount of fees to which she was entitled under the Rule 68 Offer.

Retzloff v. Moulton Parkway Residents' Association

August 23, 2017 
(2017) Cal. App. LEXIS 727

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/Retzloff-v.-Moulton-Parkway-Residents-Association.pdf

Amber Retzloff, James Franklin, and Nancy Stewart (collectively, “Plaintiffs”) sued Moulton Parkway Residents’ Association, No. One (“Association”), twice for alleged violations of the Davis-Stirling Common Interest Development Act (Civil Code § 4000 et seq.; “The Act”). The first suit was dismissed without prejudice by plaintiffs and the trial court sustained the Association’s demurrer to the second suit without leave to amend. The court further concluded that plaintiffs’ second action was frivolous and awarded the Association costs and attorney’s fees under Civil Code § 52351(c).

Plaintiffs appealed, arguing that section 5235(c) does not entitle a prevailing Associationto attorney fees, and the Association should not have been awarded costs because their action was not frivolous. In response, the Association argued that plaintiffs waived their right to appeal by raising a new legal theory on appeal and satisfying the trial court’s judgment in full.

The Court of Appeal affirmed in part and reversed in part. The court noted that raising a new legal theory on appeal was permissible because it presented only a question of law about statutory interpretation. Satisfaction of the judgment did not waive the right to appeal absent evidence of a compromise or agreement not to appeal.

The Association could not recover attorney fees because the statutory language authorized only recovery of costs (Civil Code § 5235(c)) and attorney’s fees can be awarded only when specifically provided for by statute (Code Civil Procedure § 1021). As such, the trial court did not err in finding the action frivolous because a previous action had been dismissed for failure to certify (Civil Code § 5950(a)) dispute resolution efforts (Civil Code § 5930 (a)) and the deficiency had not been adequately remedied.

Insurance

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Los Angeles Lakers, Inc. v. Federal Insurance Company

August 23, 2017 
(2017) 9th Cir. No. 15-55777

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/LOS-ANGELES-LAKERS-INC-v.-FEDERAL-INSURANCE-COMPANY.pdf

David M. Emanuel attended a basketball game at the Los Angeles Lakers’ (“Lakers”)home arena, the Staples Center. While at the game, Emanuel observed a message on the scoreboard, inviting attendees to send a text a message to a specific number. Emanuel sent a text message to the number, hoping the Lakers would display the message on the scoreboard. In response, Emanuel received the following text message: “Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg&Data Rates May Apply. Txt STOP to quit. Txt INFO for info.” 

Subsequently, Emanuel, on behalf of himself and others similarly situated, brought a class action lawsuit against the Lakers alleging that the Lakers sent the response text message using an “automatic telephone dialing system,” in violation of the Telephone Consumer Protection Act (“TCPA”). The Lakers promptly sought coverage from its insurance provider, the Federal Insurance Company (“Federal”), to defend it against the lawsuit. Federal denied coverage and declined to defend the Lakers, concluding that Emanuel had brought an invasion of privacy suit, which was specifically excluded from coverage.

After asking Federal to reconsider its position, the Lakers sued Federal for breach of contract and tortious breach of the implied covenant of good faith and fair dealing, asserting that Federal had violated the Policy by denying coverage for the Emanuel lawsuit. After removing the suit to federal court, Federal filed a motion to dismiss the suit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The District Court granted the motion and dismissed the case without leave to amend. The District Court found that the Lakers could not succeed in the suit under any cognizable legal theory, because TCPA claims are “implicit invasion-of-privacy claims” that fall squarely within the Policy’s “broad exclusionary clause” which specifically provided that “[n]o coverage will be available” for a claim, based upon, arising from, or in consequence of libel, slander, oral or written publication of defamatory or disparaging material, invasion of privacy, wrongful entry, eviction, false arrest, false imprisonment, malicious prosecution, malicious use or abuse of process, assault, battery or loss of consortium[.]”  The Lakers timely appealed.

The Court of Appeal affirmed the District Court’s dismissal, holding that because a TCPA claim is inherently an invasion of privacy claim, Federal correctly concluded that the underlying TCPA claims fell under the Policy’s broad exclusionary clause. Accordingly, Federal did not breach the insurance policy, or the implied covenant of good faith and fair dealing, under any cognizable legal theory, when it declined to defend against or cover the underlying complaint.

Mahan v. Charles W. Chan Insurance Agency, Inc. 

August 23, 2017 
(2017) Cal. App. LEXIS 725

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/Mahan-v.-Charles-W.-Chan-Insurance-Agency-Inc..pdf

86-year-old Frederick Mahan and his 79-year-old wife Martha Mahan and their daughter, Maureen Grainger, as trustee of the revocable living trust that held their life insurance policies, filed suit against Charles W. Chan, the Charles W. Chan Insurance Agency, Inc., Omar Kaddoura, Cung Thai, and the American Brokerage Network (collectively “Defendants”), all of whom provided life insurance advisory services to the couple. The complaint alleged causes of action for violations of the Elder Abuse and Dependent Adult Civil Protection Act (“The Elder Abuse Act”) (Welfare & Institutions Code § 15600 et seq.), negligence, breach of fiduciary duty under Insurance Code § 785 et seq., fraud, and unlawful business practices under Business & Professions Code § 17200.

The first amended complaint alleged that defendants, who were aware of the couple's cognitive decline, carried out an elaborate scheme that involved arranging the surrender of one of the life insurance policies and the replacement of the other with a policy providing more limited coverage, at massively increased cost. The premiums for the new coverage, spread over the term it was to be in force, amounted to some $800,000, forcing the couple to feed cash into the trust to sustain it and, in effect, consuming most of their intended $1M gift in transaction costs, including $100,000 in commissions to defendants.

The trial court sustained defendants' demurrers to the couple's first amended complaint, ruling that they had not alleged any deprivation of property owned by them within the meaning of Welfare & Institutions Code, § 15610.30. Because neither of the demurrers attacked the trust's right to pursue the negligence, breach of fiduciary duty, fraud, and unlawful business practices causes of action, the court's ruling left those claims intact, with the trust remaining as the sole plaintiff in the action.

The Court of Appeal reversed the judgment and remanded concluding that the trial court erroneously dismissed the couple's other causes of action because the deprivation of property for wrongful use or by undue influence that the court had found sufficient for purposes of the Elder Abuse Act could also serve as sufficient injury to support those causes of action. The Court found that linchpin of the alleged scheme by defendants was the donative transfer of money and assets by the couple to the trust.

The allegations of the first amended complaint could reasonably be read to assert that, by artifice and manipulation designed to take advantage of the trustee's willingness to follow what she perceived to be her father's wishes, defendants deprived the couple of property indirectly, using the trust as an instrument of their scheme. As such, the first amended complaint sufficiently alleged that the losses claimed by the couple were the property of an elder because it alleged damage to the couple's estate plan, loss of the money they felt compelled to transfer to the trust to pay for the replacement policy's term coverage, and loss of the money they felt compelled to transfer to the trust to pay defendants' commissions. Moreover, the Court held that accepting the allegations of the first amended complaint as true, defendants wrongfully obtained tens of thousands of dollars in commissions as a result of their false statements about the terms of the couple's refinance, which defendants knew were less favorable to the couple than their previous insurance policies. Thus, there was enough to say defendants knew or should have known of the likely harm their scheme would have on the couple.

The first amended complaint sufficiently alleged the couple's felt the need to pay more into the trust to keep it afloat was brought about by undue influence. Further, Defendants were alleged to have taken advantage of two aged individuals, both in a state of cognitive decline, and, by use of their professed expertise as insurance professionals, carried out an elaborate plan of replacing insurance on the victims' lives by actions or tactics that included haste or secrecy, ultimately visiting serious inequity on them, which included adverse economic consequences, divergence from their prior intent, and commissions paid that were out of proportion to the value of the services rendered to them.

Riddell, Inc. v. Superior Court (Ace American Insurance Co.) 

August 23, 2017(2017) 

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/Riddell-Inc.-v.-Superior-Court-Ace-American-Insurance-Co..pdf

Riddell, Inc. and other football helmet manufacturers and affiliates (collectively, “Riddell”) are defendants in lawsuits filed by numerous former professional football players alleging personal injuries resulting from their use of Riddell football helmets (“third party actions”). Riddell filed suit against numerous insurers (collectively, the “Insurers”) alleging that they owe Riddell a defense and indemnity in the third party actions. In Riddell’s action against the Insurers (the “Coverage Action”), the Insurers propounded discovery seeking information relating to prior claims against Riddell, which model of Riddell helmet each of the plaintiffs in the third party actions wore, and the dates of use.

Unsatisfied with Riddell’s responses to some of the discovery requests, the Insurers moved to compel further responses, including privilege logs of documents Riddell had withheld in discovery responses that had already been provided. Riddell moved for a protective order staying the discovery at issue. The trial court granted the motions to compel and denied the motion for a protective order. Riddell filed a petition for a writ of mandate challenging the rulings with respect to the discovery requests.

The Court of Appeal agreed with Riddell that the discovery at issue is logically related to factual issues in the third party actions and that a stay of that discovery is therefore appropriate. However, The Court agreed with the Insurers that Riddell must provide privilege logs of documents withheld in document productions that have already occurred. Accordingly, the Court granted the petition and directed the trial court to vacate its order on the Insurers’ motions to compel and to enter a new order granting the motions as to the privilege logs only and to grant Riddell’s request for a stay of the discovery at issue.

Labor & Employment

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Alamillo v. BNSF Railway Co. 

August 25, 2017 
(2017) U.S. App. LEXIS 16267

Full text: http://stonedeanlaw.com/wp-content/uploads/2017/08/Alamillo-v.-BNSF-Railway-Co..pdf

Antonio Alamillo filed this suit against BNSF Railway Company (“BNSF”)  for wrongful termination in violation of public policy, based on underlying violations of California Fair Employment and Housing Act (“FEHA”), California Government Code § 12940 et seq. Alamillo claims that BNSF discriminated against him on the basis of his disability, failed to accommodate his disability, and failed to engage in an interactive process with him to determine a reasonable accommodation for his disability. See California Government Code §§ 12940(a), (m)(1), (n).

The District Court granted summary judgment to BNSF, reasoning that BNSF could not have violated the FEHA because Alamillo’s termination was based on attendance violations that took place before he was diagnosed with a disability and before any accommodation was requested.

The Court of Appeal affirmed the District Court's summary judgment in favor of BNSF holding that Alamillo failed to establish that BNSF discriminated against him based on his disability, obstructive sleep apnea (“OSA”), under FEHA. In deciding, the Court applied the three-step burden-shifting test in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and held that Alamillo’s claim failed at the first step,  establishing a prima facie case of discrimination,  because the record contained no evidence that Alamillo’s OSA was a substantial motivating reason for BNSF's decision to terminate him.

The Court also held that even if Alamillo had made a prima facie case of discrimination, his claim would fail at the third step because he had not offered evidence that BNSF's stated reason, Alamillo’s history of attendance violations, was either false or pretextual. The Court further concluded that BNSF did not engage in unlawful discrimination by declining to alter appellant's disciplinary outcome, termination, based on his OSA diagnosis. As such, the Court held that BNSF did not violate its reasonable accommodation duty under FEHA.